concurring in part and dissenting in part:
The common issue in the two consolidated cases before this court is whether a trial court abuses its discretion when it refuses to rule on a defendant’s motion in limine to determine what prior convictions may be admitted for impeachment purposes until after the defendant takes the stand and testifies. The majority finds, and I agree, that when a defendant files a motion in limine seeking to have his prior convictions excluded for purposes of impeachment, the trial court abuses its discretion when, without justification, it opts to defer ruling on the motion until after the defendant testifies. As the majority recognizes, unwarranted delay in ruling on such motions (1) prevents the defendant from having information necessary for making the “critical decision” about whether to testify and (2) hinders the defendant’s ability to make “reasoned tactical decisions” in planning his defense. 233 Ill. 2d at 70.
I also agree with the majority that, henceforth, trial courts should enter judgment on a defendant’s motion in limine before the defendant testifies in all but those extremely rare instances where the court “cannot effectively conduct a Montgomery balancing test without hearing the defendant’s testimony” (233 Ill. 2d at 73) and, in such cases, trial courts should articulate on the record the basis for the delayed ruling (233 Ill. 2d at 73). Where I part ways with the majority is in its inconsistent and inequitable application of this new rule to the cases at bar.
In Patrick, the defendant was charged with murder for shooting and killing a man at a laundromat. The defendant claimed he shot the victim accidentally, after provocation. Prior to trial, the defendant filed a motion asking the court to exclude, for impeachment purposes, his three prior convictions — all for possession of a controlled substance. The trial court refused to rule on the motion until after defendant testified, at which time the court denied the motion and permitted the State to impeach defendant’s credibility with the three prior convictions.
The majority finds, with regard to Patrick, that the trial court abused its discretion because its only justification for refusing to rule on defendant’s motion in limine prior to the defendant’s testimony was its professed “procedure in every case, without exception *** not to give advisory opinions.” 233 Ill. 2d at 74. Moreover, the majority finds that, because a trial court’s error in failing to rule on such motions in limine is of “constitutional magnitude” (233 Ill. 2d at 75), the error will require reversal unless there is a showing of harmlessness beyond a reasonable doubt. The majority then concludes that the error here does not meet this standard and that defendant was “substantially prejudiced” in that he was “unjustifiably required” to make important tactical decisions, including whether or not he should testify, without the benefit of the court’s ruling. 233 Ill. 2d at 75.
In finding reversible error in Patrick, the majority never looks beyond the trial court’s error in refusing to rule. In other words, when deciding that the trial court’s refusal to rule was error which was not harmless beyond a reasonable doubt, the majority does not engage in the typical harmless-error review — that is, it does not look to see whether the defendant suffered no actual prejudice, either because the trial court’s ultimate ruling on the admissibility of the prior convictions was correct, or because the evidence overwhelmingly supported the guilty verdict. Instead, the majority finds, in Patrick, that the very fact that the court did not rule prior to defendant testifying was inherently prejudicial and that this prejudice infected the entire proceeding. As the majority explains:
“Here, Patrick was unjustifiably required to make a tactical decision without the ability to evaluate the impact it would have on his defense. Patrick’s counsel was unable to inform the jury whether Patrick would testify and was anticipatorily unable to disclose Patrick’s prior convictions to lessen the prejudicial effect the convictions would have on his credibility.” 233 Ill. 2d at 75.
The majority also notes how “critical” it was for Patrick to have the court rule prior to trial because the defendant relied on a theory of self-defense and “knowing whether his prior convictions were going to be used for impeachment was a vital factor that needed to be weighed” in forming his decision about whether to testify. 233 Ill. 2d at 75.
Despite the majority’s finding that the failure to rule on such motions in limine is an error of “constitutional magnitude,” the majority abandons its harmless beyond a reasonable doubt analysis when reviewing Phillips. Citing to Luce v. United States, 469 U.S. 38, 41-43, 83 L. Ed. 2d 443, 447-48, 105 S. Ct. 460, 463-64 (1984), and this court’s decisions in People v. Whitehead, 116 Ill. 2d 425 (1987), and People v. Thompkins, 161 Ill. 2d 148 (1994), the majority holds, “the issue of the trial court’s refusal to rule on Phillips’ motion in limine seeking to bar the use of prior convictions for impeachment was not preserved for review because Phillips chose not to testify.” 233 Ill. 2d at 77. I believe this holding is inconsistent with and contradictory to the majority’s own holding just paragraphs earlier with regard to Patrick and, therefore, incorrect.
In Phillips, the defendant was charged with attempted murder, armed violence, and aggravated battery in relation to a stabbing incident. Here, as in Patrick, the defendant raised the defense of self-defense, claiming that the victim initially swung at him with a piece of lumber. As in Patrick, the defendant filed a motion in limine seeking a ruling on the admissibility of his prior convictions. The trial court excluded one prior conviction, but refused to rule on the admissibility of three other prior convictions — armed violence, aggravated battery, and manufacture or delivery of a controlled substance.
Here, as in Patrick, the trial court’s refusal to rule on the motion in limine prior to defendant testifying was an abuse of discretion. As the appellate court noted, not only did the trial court refuse to rule prior to trial, it refused to rule even when defendant renewed his in limine motion after the State finished presenting its evidence and after defendant’s other witnesses had testified. The appellate court stated, “this court does not understand what more the trial court needed to make its ruling.” Phillips, 371 Ill. App. 3d at 952.
Moreover, under the court’s own reasoning in Patrick, the error cannot be harmless beyond a reasonable doubt because Phillips, like Patrick, was forced to make a critical decision — whether to testify — without the benefit of information vital to that decisionmaking process. Unsure what prior convictions the court would let in, the defendant could not determine what impact the exercise of his right to testify would have on his defense. Although Phillips chose not to testify, he could not have made a knowing and intelligent waiver of his constitutional right to testify because he did not know which, if any, of his prior convictions would be used for impeachment. Further, here, as in Patrick, a ruling by the trial court on the motion in limine was vital because defendant raised a defense of self-defense, a defense that is generally better received by the jury when the defendant testifies.
If, as the majority holds in relation to Patrick, a defendant suffers “substantial prejudice” as a result of the trial court’s refusal to decide, prior to defendant testifying, which of the defendant’s prior convictions will be admitted for impeachment, we must find that Phillips suffered the same “substantial prejudice” that Patrick suffered. In addition, because the majority has just held in relation to Patrick that the trial court’s refusal to rule is an error of constitutional dimension and that substantial prejudice stems from the fact that a defendant in this position is unable to make a knowing and intelligent decision about whether to testify, it cannot be said that the error in Phillips was harmless beyond a reasonable doubt. Under the majority’s own analysis in Patrick, the fact that Phillips did not testify cannot be part of the calculus in any way. Because Phillips suffered the same prejudice as Patrick, even though he did not testify, the disparate treatment of the two defendants before this court is not logical or equitable.
As noted above, in support of its determination that Phillips failed to preserve for review the trial court’s error in failing to rule on the motion in limine, the majority cites Luce, Whitehead and Thompkins. I find these cases to be distinguishable.
In Luce the Court held that “to raise and preserve for review the claim of improper impeachment with a prior conviction [under Rule 609(a) of the Federal Rules of Evidence], a defendant must testify.” Luce v. United States, 469 U.S. 38, 43, 83 L. Ed. 2d 443, 448, 105 S. Ct. 460, 464 (1984). In reaching this determination, the Court reasoned that a decision under Rule 609(a) is a preliminary ruling on a question “not reaching constitutional dimensions.” Luce, 469 U.S. at 43, 83 L. Ed. 2d at 448, 105 S. Ct. at 464. The Court further explained that a defendant must testify to preserve his right to appeal because, without a complete record, a reviewing court is handicapped in its efforts to evaluate the propriety of the lower court’s balancing of the probative value of the prior conviction against its prejudicial effect. The Court also noted:
“Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. See generally United States v. Hasting, 461 U.S. 499 (1983). *** Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole.” Luce, 469 U.S. at 44, 83 L. Ed. 2d at 449, 105 S. Ct. at 465.
Clearly, Luce addressed a different issue from the one before us here. Luce addressed the propriety of reviewing a trial court’s ruling on the admissibility of prior convictions for impeachment purposes when the defendant chooses not to testify. Luce never considered whether it was error for a trial court to refuse to make an admissibility determination unless the defendant decided to testify.
More importantly, the rationale employed by Luce to support its ruling that a defendant must testify to preserve his appeal is not applicable here based on the majority’s own findings in this same opinion with regard to Patrick. As noted above, the Luce Court believed that the propriety of a court’s Rule 609(a) preliminary ruling was not a question of constitutional dimension, whereas the majority here holds that the error involved in the cases at bar is one of constitutional dimension. Further, the majority holds in relation to Patrick that the error is not harmless beyond a reasonable doubt simply because the defendant could not have made a knowing and intelligent waiver of his right to testify. The Court in Luce, however, held that it was necessary for a defendant to testify to preserve his right to appeal so that there would be a record which a reviewing court could use to determine whether the trial court’s ruling on the admission of prior convictions, if error, was harmless when compared to the weight of the evidence. The majority, in relation to Patrick, never engages in this type of harmless-error review — it never weighs the harm against the weight of the evidence.
Whitehead and Thompkins are similarly inapposite. In both cases, rulings were entered on the defendants’ motions in limine prior to trial. In Whitehead, the defendant filed two motions in limine — one to prevent the State from cross-examining defendant’s expert witness with regard to admissions defendant had made when he underwent psychiatric evaluation during an earlier prosecution; the other to prevent the State from impeaching the defendant with those same admissions. Both motions were denied. The trial court held that the earlier admissions could be raised, but made no specific ruling about the extent of inquiry that would be permitted. Whitehead, 116 Ill. 2d at 442-43. The trial court declined the defendant’s invitation to delineate, prior to trial, the appropriate scope of cross-examination, finding it would depend on what the defendant and his witness testified. Whitehead, 116 Ill. 2d at 442-43. As a result of the trial court’s rulings, neither the defendant nor his expert witness took the stand. On review, this court, applying the “logic of Luce,” ruled that no decision could be made regarding the appropriate scope of cross-examination because defendant’s decision not to testify and to withhold the testimony of his expert witness deprived the reviewing court of a reviewable record.
In Thompkins, the defendant, in a postconviction petition, sought review of the trial court’s unfavorable ruling on defendant’s motion in limine to preclude his impeachment with prior convictions. In a two-sentence paragraph, we declined to address the claim, finding it waived because it could have been raised on direct appeal, and then noting as an aside that, pursuant to Luce, defendant’s failure to testify at trial would have meant that the issue would have been waived even on direct appeal. Thompkins, 161 Ill. 2d at 193.
In these cases which the majority relies on, the defendant obtained a ruling on his motion in limine— something that the defendants in the consolidated cases before this court did not receive. They are distinguishable on that basis. However, even if they were not distinguishable, they are overruled by the majority’s own judgment in relation to Patrick. While this court may have adopted the logic of Luce in Whitehead and Thompkins, the majority, by its decision in regard to Patrick, has now limited the Luce rationale to situations in which the defendant has obtained a ruling on his motion in limine and, thus, any error in the trial court’s exercise of discretion is not of constitutional dimension.
In sum, I agree with the majority that requiring a defendant to testify before he can obtain a ruling on his motion in limine to decide the admissibility of prior convictions for impeachment purposes results in substantial prejudice to the defendant. As the majority holds in relation to Patrick, this prejudice stems from the defendant’s lack of “vital information” which prevents him from making a knowing and intelligent decision about whether to testify and hinders his ability to make tactical decisions about how to present his defense. Accordingly; the prejudice such defendants suffer prevents them from receiving a fair trial and, therefore, is not harmless, whether or not they choose to testify.
CONCLUSION
I agree with the majority that a defendant is substantially prejudiced when a trial court refuses to rule, prior to trial, on a defendant’s motion in limine to determine what prior convictions are admissible for impeachment purposes. Because the prejudice stems from the lack of information, which prevents the defendant from making a knowing and intelligent decision about whether to testify, the trial court’s error is of constitutional dimension and cannot be deemed harmless. Accordingly, I cannot agree with the majority’s inconsistent and inequitable holding that a defendant who does not testify does not preserve the error.
For the above reasons, I concur in the majority’s resolution of the appeal in Patrick, but respectfully dissent from the majority’s resolution of the appeal in Phillips.
JUSTICE FREEMAN joins in this partial concurrence and partial dissent.